Judicial enforcement of EU law
A judicial system whereby individuals seeking remedies before national tribunals and courts could rely upon EU law is necessary for the enforcement of EU law on employment and industrial relations. The model for judicial enforcement of EU law could have followed one of at least two tracks.
Enforcement of EU law could have been left entirely to the national judicial system of each Member State, using the national system of remedies, procedures and sanctions to enforce EU law on employment and industrial relations.
Alternatively, the attempt might be made to create an entirely original form of judicial system. This would mean developing a new and uniform EU law on remedies, procedures and sanctions, to which the national judicial systems of all Member States must conform. This solution would require the EU institutions to prescribe a system of harmonised rules on enforcement covering remedies for infringements of EU law, procedures and sanctions. The legislative organs of the EU have refused to do so; there is lacking a consensus among Member States that this is either necessary or desirable.
The failure to develop a uniform system of enforcement of EU labour law means that there is considerable diversity among Member States with regard to the efficacy of enforcement of generally applicable EU law on employment and industrial relations. Those Member States with less efficacious remedies, more procedural restrictions, and weaker sanctions may better be able to avoid compliance with EU labour law, by effectively reducing the likelihood of judicial remedies for those benefiting from it, or the likelihood of liability of those subject to it.
The failure of the legislative organs of the EU to develop an EU judicial system has to some extent been compensated for by the efforts of the European Court of Justice (ECJ). The ECJ has developed a role for the national judicial systems in securing enforcement of EU law, including labour law. Article 4(3) TEU sets out Member State obligations regarding compliance with EU law.
National judiciaries are also organs of the Member States, and, as such, incur responsibility for ensuring fulfilment of the Article 4 TEU obligation. A link was created between the European Court of Justice and national judiciaries, using the Article 267 TFEU preliminary reference procedure. This was used to develop uniform rules for the enforcement of EU law through an EU judicial system. National courts were recast as part of a supra-national judicial hierarchy, with the European Court at its apex.
Article 267 TFEU was the instrument enabling the ECJ to develop an EU judicial system. Article 267 TFEU provides that, on questions of EU law, any ‘court or tribunal may if it considers that a decision on the question is necessary to enable it to give judgement, require the Court of Justice to give a ruling thereon’. This intervention in national judicial systems allowed any courts, including lower courts, to make direct references to the ECJ. The ECJ was given a specific position within national judicial systems by the last paragraph of Article 267 TFEU: ‘Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.’
These provisions were the constitutional basis allowing for the integration of the ECJ into Member State judicial systems and the eventual recasting of these national systems as part of a supranational EU judicial system for the enforcement of EU law.
See also: access to the judicial process; direct effect; euro-litigation; indirect effect; justiciability of EU law; national labour courts; enforcement of EU law; state liability; supremacy of EU law.